Unions complained about employee privacy but company had right to monitor use of its assets
An Ontario company’s electronic tracking of company vehicle use was reasonable and didn’t violate employee privacy, the Ontario Labour Relations Board has ruled.
Otis Canada, an elevator construction and maintenance company based in Toronto, found in early 2008 that its costs related to its fleet of company vehicles were increasing, particularly in fuel consumption, maintenance, rentals and accidents. An analysis determined the most cost savings could be achieved through a reduction in fuel consumption.
The leasing company Otis used recommended the use of a technology called Telematics, which involved the installation of devices in company vehicles that monitored when the vehicle was turned on and off. By measuring each vehicle’s operation, Otis could record the use of that asset and ensure employees who took company vehicles home weren’t using it for personal reasons. The devices had GPS capability, but Otis didn’t enable this feature.
Before implementation of Telematics, many employees took company vehicles home because they could keep tools in them and go directly to job sites. Otis claimed it had a rule that didn’t allow personal use of vehicles, but often employees used them to run errands on the way home or for things like attending union meetings, usually with the consent of their supervisors. There was no way for Otis to truly know if employees were using company vehicles for personal errands unless there was damage to a vehicle or an employee was actually seen on a personal errand, so discipline for unauthorized use was rare.
In June 2009, Otis implemented a test run for Telematics in Hamilton and rolled it out to the rest of the company in December. Employees were informed of how the devices worked and that they recorded the date and time the engine started and turned off, the distance driven, stationary and moving time, stop time between trips and fuel consumption. They were also warned of the company’s policy against personal use of vehicles and unauthorized use would result in discipline and termination, with the exception of short stops or trips home.
Employees, unions didn’t like new vehicle monitoring system
Once Telematics were implemented, the number of employees who took company vehicles home decreased, as many had privacy concerns over the use of the devices, particularly after hours. Otis didn’t require any employees to take vehicles home, so it made arrangements where possible to set up parking spots where employees could pick up vehicles. In some cases, employees used their own vehicles and Otis paid the mileage from the first stop to the last of the workday. Employees who were on call were allowed reasonable personal use since they had to be available.
Two unions representing Otis employees filed grievances over Telematics, arguing the monitoring of the vehicles outside of working hours was a violation of employee privacy. They also said prior to the implementation, there was no enforced policy against personal use of vehicles, and enforcing one now was a unilateral change in the terms of employment without consultation. The unions also pointed to the collective agreement, which stipulated there would be “no geographical restrictions on the use of personal or company vehicles.”
Another grievance stemmed from a long-time employee with no disciplinary record who claimed he was allowed to do small personal errands in a company vehicle until the Telematics implementation. After the company warning to employees regarding discipline for violations of the policy, the employee said his managers knew he was still running small errands in the company vehicle and nobody told him not to. However, after using a company vehicle a few times to pick up groceries, the employee was suspended for two days.
The board noted the collective agreement allowed Otis to use new technology to improve its service to customers with no restrictions and it found Telematics could be included in this. It also found Otis had legitimate business reasons for installing Telematics devices in its vehicles and they only monitored if the vehicle was in use, not its location. In addition, shutting off the devices after hours wasn’t a solution because the purpose of the monitoring was to ensure no off-hours use, said the board. The board agreed with Otis that the company was simply monitoring its assets.
The board also found the enforcement of the personal use policy brought about by Telematics wasn’t a significant change to the terms and conditions of employment.
“The employer is responsible and indeed liable for (its) vehicles at all times,” said the board. “The Telematics device is a legitimate way to protect the employer’s asset; an asset for which it has full responsibility given the options that the employer has provided to employees, the restriction on the use of the vehicle during off duty hours is justified.”
Though the “no personal use” policy was limited and rarely enforced before Telematics due to difficulties in monitoring vehicle use, once Telematics were implemented, Otis clearly communicated the policy and the risk of discipline to its employees, said the board. Any threats to employee privacy were the employee’s choice.
“An employee can either obtain permission for the use of the company vehicle which permission requires a disclosure of where the vehicle will be and when and for how long or she can leave the vehicle and provide no explanation to the employer at all. The employee’s privacy rights are in that way fully protected,” said the board.
However, although the rule was reasonable and enforceable, the board found the two-day suspension of the employee was too much. The employee had many years of service with a spotless employment record, and he was used to being able to use a company vehicle for small errands. The employee’s misconduct was “inadvertent and his discipline excessive,” said the board. The suspension was reduced to a written warning and Otis was ordered to pay the employee for lost compensation.
For more information see:• Otis Canada Inc. v. IUEC, Local 50, 2013 CarswellOnt 851 (Ont. Arb. Bd.).